Caseflicks

Supreme Court of the United States • 2018

Trump v. Hawaii

585 U.S. 667 | 138 S. Ct. 2392 | 201 L. Ed. 2d 775 | 2018 U.S. LEXIS 4026

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Takeaway

In short, Trump v. Hawaii upheld the President’s broad statutory power to restrict entry by foreign nationals and applied highly deferential review to an Establishment Clause challenge, concluding that a plausible national-security rationale defeated the claim of anti-Muslim animus.

Background

After taking office, President Trump issued two executive orders temporarily restricting entry by nationals of several predominantly Muslim countries while the Government reviewed foreign countries’ information-sharing and identity-management practices. Both orders were substantially enjoined, and the second expired before final review.

Following a worldwide, multi-agency review, the President issued Proclamation No. 9645. Invoking 8 U.S.C. §§1182(f) and 1185(a), the Proclamation imposed country-specific entry restrictions on nationals of Chad, Iran, Libya, North Korea, Syria, Venezuela, Yemen, and Somalia. It cited inadequate identity-management or information-sharing practices, or other national-security risks. It included exceptions, case-by-case waivers, and periodic 180-day review; Chad was later removed after improving its practices.

Hawaii, affected individuals with relatives abroad, and the Muslim Association of Hawaii challenged the Proclamation. The District Court entered a nationwide preliminary injunction. The Ninth Circuit affirmed, holding that the Proclamation exceeded the President’s authority under §1182(f) and conflicted with the INA’s bar on nationality discrimination in issuing immigrant visas, §1152(a)(1)(A). The Ninth Circuit did not reach the Establishment Clause claim. The Supreme Court reversed and remanded.

Issues

Issue #1

Whether the plaintiffs’ statutory challenges to the Proclamation were judicially reviewable despite the doctrine of consular nonreviewability.

Holding

The Court assumed, without deciding, that the statutory claims were reviewable.

Reasoning

The Government argued that decisions to exclude foreign nationals are generally committed to the political branches and are not subject to judicial review under the doctrine of consular nonreviewability. It also argued that the INA’s review provisions authorize review principally for noncitizens already present in the United States.

The Court regarded reviewability as difficult but declined to resolve it. The Government did not argue that the issue was jurisdictional, and it identified no INA provision that clearly withdrew the Court’s jurisdiction. The Court therefore assumed reviewability and decided the statutory issues on their merits.

Issue #2

Whether the Proclamation exceeded the President’s authority under 8 U.S.C. §1182(f).

Holding

No. The Proclamation fell within the broad authority §1182(f) delegates to the President to suspend or restrict entry of aliens when their entry would be detrimental to United States interests.

Reasoning

Section 1182(f) gives the President substantial discretion over whether to suspend entry, which aliens or class of aliens to cover, the length of the restriction, and its conditions. Its sole stated prerequisite is a presidential finding that entry of the covered aliens would be detrimental to the interests of the United States.

The President satisfied that prerequisite. The Proclamation followed a worldwide review by DHS, the State Department, and intelligence agencies, identified country-specific deficiencies in identity management and information sharing, and found that restrictions would protect national security while encouraging foreign governments to improve their practices.

The Court rejected the claim that the findings were too conclusory or insufficiently persuasive. Even if some review of the findings were appropriate, the Proclamation was unusually detailed compared with earlier presidential orders under §1182(f), and courts must accord substantial deference to presidential predictive judgments in foreign affairs and national security.

The restrictions were not invalid for lacking a fixed end date. Section 1182(f) permits suspension for a period the President deems necessary, and the Proclamation tied its duration to correcting identified deficiencies, required periodic review, and in fact led to the removal of Chad after it improved its practices.

Nor did the Proclamation fail because nationality is not a permissible “class of aliens.” The statutory text allows suspension of entry of “any class,” and a group defined by nationality comfortably fits that language. The statute contains no additional requirement that the class be narrowly tailored or defined by some trait other than nationality.

The INA’s individualized inadmissibility rules and Visa Waiver Program did not implicitly displace the President’s authority. Individual screening cannot fully resolve a systemic inability to obtain reliable information from a foreign government, and the Visa Waiver Program’s benefits for countries with especially strong security cooperation did not address entry rules for high-risk countries outside that program.

Legislative history and past practice did not add an emergency-only limitation that Congress omitted from the statute. Congress removed earlier wartime and national-emergency language when enacting §1182(f), and prior Presidents had used the provision to respond broadly to foreign-policy concerns, including through nationality-based restrictions.

Issue #3

Whether the Proclamation violated 8 U.S.C. §1152(a)(1)(A), which prohibits nationality discrimination in the issuance of immigrant visas.

Holding

No. Section 1152(a)(1)(A) governs the allocation and issuance of immigrant visas, not the President’s separate authority to determine admissibility and entry under §1182(f).

Reasoning

The INA consistently distinguishes visa issuance from admissibility and entry. Section 1182 establishes who is admissible and therefore eligible for a visa; even a person issued a visa may be denied entry upon arrival if found inadmissible under §1182 or another provision of law.

Section 1152(a)(1)(A) expressly prohibits discrimination based on nationality and other listed characteristics only in the issuance of immigrant visas. It does not mention admission or entry, and Congress could have used language directed to entry if it had intended to limit the President’s §1182(f) authority.

The plaintiffs’ broader reading also conflicted with historical practice and common sense. Presidents have repeatedly imposed nationality-based entry restrictions, and the plaintiffs’ interpretation would prevent tailored presidential action against entry from a particular nation in response to an epidemic, a terrorist threat, or an impending conflict.

Issue #4

Whether the individual plaintiffs had Article III standing to bring their Establishment Clause challenge.

Holding

Yes. The individual plaintiffs had standing because the Proclamation allegedly separated them from close relatives seeking entry to the United States.

Reasoning

The Court did not decide whether the plaintiffs’ asserted spiritual or dignitary injury alone was sufficient for standing. It held instead that separation from relatives seeking admission is a concrete, particularized injury.

Although the Government argued that the Establishment Clause does not create a legally protected interest in a relative’s admission, that argument concerned the merits of the constitutional claim rather than the plaintiffs’ standing to litigate it.

Issue #5

Whether the Proclamation likely violated the Establishment Clause because it was allegedly motivated by anti-Muslim animus.

Holding

No. The plaintiffs had not shown a likelihood of success because the Proclamation survived rational-basis review as plausibly related to independent, legitimate national-security and vetting objectives.

Reasoning

The Court emphasized that admission and exclusion of foreign nationals are fundamental sovereign functions committed largely to the political branches. Under Kleindienst v. Mandel and related cases, judicial review of constitutional claims connected to exclusion is particularly constrained, especially when national security and foreign affairs are involved.

Rather than decide the exact scope of Mandel, the Court assumed it could examine the Proclamation’s text alongside the President’s and advisers’ extrinsic statements. It applied rational-basis review, asking whether the policy could reasonably be understood to rest on a justification independent of unconstitutional religious hostility.

The Proclamation was facially neutral as to religion and expressly rested on legitimate objectives: preventing entry by nationals who could not be adequately vetted and encouraging foreign governments to improve information-sharing practices. Its coverage of several Muslim-majority countries did not itself establish religious animus, particularly because it reached only a small portion of the world’s Muslim population and included countries previously identified by Congress or prior administrations as presenting security concerns.

The policy also emerged from a worldwide, multi-agency review and imposed differing restrictions based on the circumstances of each country. The Court declined to substitute its own assessment for the Executive’s judgments about the policy’s wisdom or effectiveness in an area involving sensitive national-security predictions.

Several operational features further supported a legitimate security rationale: Iraq, Sudan, and Chad, all Muslim-majority countries, had been removed from coverage; the Proclamation contained substantial exceptions for lawful permanent residents, asylees, and many nonimmigrant travelers; and it provided case-by-case waivers for undue hardship, national interest, and public-safety circumstances.

Because the Government offered a plausible national-security justification independent of religious animus, the plaintiffs did not establish a likelihood of success on the merits. The Court therefore reversed the preliminary injunction and did not address its nationwide scope.

Concurrences

Justice Kennedy

Reasoning

Justice Kennedy joined the Court’s opinion in full but stressed that judicial deference in foreign affairs does not release executive officials from their constitutional obligations. Government officials take an oath to uphold the Constitution even where courts may lack authority or competence to scrutinize every official statement or action.

He emphasized that broad executive discretion makes voluntary adherence to constitutional guarantees especially important. The Government must remain committed to religious liberty, free exercise, freedom of belief, and freedom of expression so that constitutional freedom endures even in the foreign-affairs sphere.

Justice Thomas

Reasoning

Justice Thomas joined the majority but would have gone further on the merits. In his view, §1182(f) supplies no judicially enforceable limits on the President’s discretion, and the President also possesses inherent authority to exclude foreign nationals. He further questioned the premise that the Establishment Clause creates an individual right to challenge every policy that a reasonable observer might regard as religiously hostile.

He wrote principally to criticize the nationwide, or “universal,” injunction entered by the District Court. Such an injunction bars enforcement of a policy against nonparties as well as parties, and Justice Thomas argued that this form of relief is historically and legally doubtful because traditional equitable relief ordinarily addressed the rights of the litigants before the court.

Justice Thomas warned that universal injunctions encourage forum shopping, prevent legal questions from percolating through different courts, and turn individual disputes into national emergencies. If lower courts continue issuing them, he concluded, the Supreme Court should decide whether Article III and traditional equity permit them.

Dissents

Justice Breyer

Reasoning

Justice Breyer, joined by Justice Kagan, focused on whether the Proclamation’s waiver and exemption system was actually operating as written. If the Government genuinely granted individualized waivers and exemptions, that practice would support its claim that the policy was a security measure rather than a Muslim ban; if it did not, the policy’s asserted justification would be substantially weaker.

The available evidence raised serious concerns. During the first month, only two waivers were approved out of thousands of eligible applicants, and later approval figures still appeared extremely low. Refugee admissions and student and other visa issuances from covered countries also dropped sharply, despite the Proclamation’s exemptions for refugees, students, and other categories of travelers.

Anecdotal evidence and a consular officer’s declaration suggested that the waiver process might be largely illusory or subject to rigid constraints. Because the factual record was incomplete and the waiver program was central to assessing the policy’s true purpose and legality, Justice Breyer would have remanded for further factual proceedings while leaving the injunction in place.

If required to decide the issue on the existing record, Justice Breyer would have concluded that the President’s anti-Muslim statements, together with evidence that waivers were not being administered normally, sufficiently showed that the Proclamation was unlawfully affected by religious animus.

Justice Sotomayor

Reasoning

Justice Sotomayor, joined by Justice Ginsburg, argued that the Establishment Clause requires governmental religious neutrality and that a reasonable observer would conclude that the Proclamation was motivated by anti-Muslim animus. In her view, this constitutional question was clearer than the statutory questions and independently required an injunction.

She chronicled the President’s campaign and post-inauguration statements calling for a “total and complete shutdown of Muslims,” asserting that Islam “hates us,” describing later orders as a legally revised version of the promised Muslim ban, and continuing to make anti-Muslim statements after issuing the Proclamation. The President’s failure to disavow those statements, she reasoned, reinforced their significance.

The majority improperly used deferential rational-basis review to avoid meaningful Establishment Clause scrutiny. Mandel and Din involved individual visa decisions under specific statutory grounds, not a sweeping executive policy allegedly enacted to disfavor a religion. Even under rational-basis review, she concluded, the record showed that the Proclamation was too disconnected from its claimed national-security justification to be explained by anything other than animus.

The Proclamation overwhelmingly targeted Muslim-majority nations, while North Korea and Venezuela were only minimally affected. Its reliance on an undisclosed multi-agency review could not erase the policy’s discriminatory origins, and Congress’s detailed immigration, screening, and Visa Waiver frameworks already addressed the Government’s stated vetting concerns.

Justice Sotomayor also challenged the waiver program as potentially a sham, citing sparse waiver approvals and evidence of arbitrary administration. The resulting harms—family separation, disruption to universities and religious communities, and broader injuries to national security, medicine, culture, and the economy—supported preliminary injunctive relief.

Finally, she viewed the majority’s reasoning as dangerously reminiscent of Korematsu: both accepted an asserted national-security rationale for a sweeping exclusionary policy despite strong evidence of prejudice. Although the Court formally repudiated Korematsu, she argued that its decision repeated the same error by accepting a discriminatory policy under the cover of national security.